(1) The appeal is upheld and the sentence of the Magistrate is set aside.
(2) On the charge of minor theft (CC2020/8172), the Good Behaviour Order is revoked and the offender is sentenced to one months’ imprisonment commencing 28 November 2022 and expiring 27 December 2022.
(3) On the charge of drive with prescribed drug in oral fluid (CC2022/1073), the offender is sentenced to one month and 15 days’ imprisonment, commencing on 26 December 2022 and expiring on 9 February 2023. I impose a licence disqualification of two years commencing 4 December 2023.
(4) On the charge of possess stolen property (CC2022/1074), the offender is sentenced to three weeks’ imprisonment commencing from 3 February 2023 and expiring on 23 February 2023.
(5) On the charge of use numberplate not properly issued (CC2022/1075), the offender is sentenced to a fine of $600 with no time to pay.
(6) On the charge of drive while disqualified (CC2022/1076), the offender is sentenced to four months and 15 days’ imprisonment commencing 14 February 2023 and expiring 28 June 2023. An automatic licence disqualification of 24 months applies, to be served concurrently with the licence disqualification in Order 3, commencing 4 December 2023.
(7) On the charge of dishonestly drive a motor vehicle (CC2022/1077), the offender is sentenced to 13 months’ imprisonment commencing 28 April 2023 and expiring 27 May 2024.
(8) I impose a nonparole period of one year and seven days commencing 28 November 2022 and expiring 4 December 2023.
Catchwords:
APPEAL – APPEAL FROM MAGISTRATES COURT – Sentence appeal – where respondent conceded multiple specific errors – re-sentence – “fairly typical” example of these types of offences – substance abuse – prospects for rehabilitation – significant criminal history – not necessary to determine whether jurisdiction to hear appeal of licence disqualification periods – sentenced to term of imprisonment – nonparole period imposed
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Hayne v Zheng [2023] ACTSC 326
Case
[2023] ACTSC 326
Decision Date
CaseChat Overview and Summary
In the case of Hayne v Zheng, the Supreme Court of the Australian Capital Territory upheld the appeal of the appellant, Jamie Hayne, against his sentence imposed by the Magistrates Court. The appeal was successful on several grounds, including the Magistrate's failure to set a nonparole period for one of the charges, not providing reasons for not setting a nonparole period, not discounting sentences for pleas of guilty, and imposing ambiguous licence disqualification periods. The court found that the Magistrate's original sentence was manifestly excessive in one instance. The Supreme Court re-sentenced the appellant, taking into account his significant criminal history, substance abuse issues, and potential for rehabilitation. The court imposed a total effective sentence of 641 days’ imprisonment, consisting of two discrete periods, and various licence disqualification periods and fines. The court also set a nonparole period of one year and seven days.